The main issue here that moving forward beyond the medievalist 'believers', (those that do not question, the incurious, the people who believe what they are told because thats what they are told and thats the end of it) still have political influence. It is taking a long time to squeeze out say catholic religionists. A long time. And the Christians may even have one last use before they are squeezed out..... when the time is right. To fortify us against the islamist religionists. Who knows how that will work itself out. Who knows what the path to sensible rationality will be.

Ha, "medievalist believers" is comical. Concur, you should be glad to not be Jewish under the enlightened anti-religious reign of Hitler or be an "intellectual" under ardent anti-faith regimes in China and Cambodia. Never mind that Stalin, like his fellow travelers Hitler, Mao, Pol Pot, the Kims of the DPRK, were all socialists and atheists.
Many of faith do question, and it was the faithful that invented genetics,enlightened our views of the cosmos, and invented Saran Wrap, and were curious enough to create art, music and literature for all to enjoy. Indeed, to be a faithful Christian requires introspection, and examination and study.
Will we "fortify us" against the "islamist religionists"? That depends, maybe will will all come together and sing "kumbaya" or, maybe we will just defend ourselves and our families, leave the smart nonbelievers to their own devices. Too bad those devices won't include rifles that load themselves for second and third shots. Such rifles once helped stopped a great injustice, as the Third Reich's primary arm was the bolt-actioned Mauser, while the US soldiers were issued Garands as their primary arm. Good Luck!

Ha, "medievalist believers" is comical. Concur, you should be glad to not be Jewish under the enlightened anti-religious reign of Hitler or be an "intellectual" under ardent anti-faith regimes in China and Cambodia. Never mind that Stalin, like his fellow travelers Hitler, Mao, Pol Pot, the Kims of the DPRK, were all socialists and atheists.
Many of faith do question, and it was the faithful that invented genetics,enlightened our views of the cosmos, and invented Saran Wrap, and were curious enough to create art, music and literature for all to enjoy. Indeed, to be a faithful Christian requires introspection, and examination and study.
Will we "fortify us" against the "islamist religionists"? That depends, maybe will will all come together and sing "kumbaya" or, maybe we will just defend ourselves and our families, leave the smart nonbelievers to their own devices. Too bad those devices won't include rifles that load themselves for second and third shots. Such rifles once helped stopped a great injustice, as the Third Reich's primary arm was the bolt-actioned Mauser, while the US soldiers were issued Garands as their primary arm. Good Luck!

"You seem, in pages 84 and 148, to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is “boni judicis est ampliare jurisdictionem,” and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.... When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power."
- Thomas Jefferson

And your point being ...? TJ was a bright guy, but he didn't do anything about slavery except have kids with at least one of his. So when he talks about 'the people themselves' he really only meant white, propertied males -- those who had the right to vote at the time of this quote.

He argued against governmental debt and then borrowed money to conclude the Louisiana Purchase -- in itself a constitutionally questionable action.

Yes, human beings are indeed fallible, all of us...and it is many times ok to change your mind for a good reason.

While the president was calling the Sandy Hook an appalling incident and talked about protecting our most innocent citizens, he completely ignored the MILLIONS of aborted children who never had a chance at life outside the womb. Abortion is absolute age discrimination and genocide. Funny how many Jews support "a woman's choice," and yet abhor the murder of innocent children who happen to be a few years older.

Right, a family issue, but so many 'anti-government' fanatics think they should use the government to impose their religious beliefs on all families. Which is why the courts get dragged into the issue -- it's called checks and balances to protect individual rights...

"I have a tremendous amount of sympathy for people who argue that the right to marry the person of one's choosing, regardless of gender, is a fundamental right not subject to ratification by the majority of voters. I have this sympathy because they are correct."

What a stupid couple of sentences. 'I believe it is correct because I believe it is correct.'

Row v Wade was regrettable in part because it lowered the People's expectation of our participation in our democracy. Large portions of our population hold strongly opposed views on this issue, and our pre-RvW constitutional system was perfectly well equipped to handle that. Let the states have their varied laws reflecting the views of their varying majorities, and if it is important enough to treat uniformly across the nation, let the People amend the Constitution to say so. One might argue that it is very difficult to amend the Constitution, but this is just an example of post-RvW democratic laziness. Remember, the People have done so many times before. We even managed amendments both ways on alcohol within 15 years. If the Court hadn't fabricated a constitutional right to abortions 40 years ago, it might actually be in the Document in some form by now.

This is unfortunate for many reasons, not least the damage it does to the idea that we are governed by laws, not men. From a very practical perspective, it causes abortion to continue to suck up our scarce political resources. Every election cycle, many millions of Americans have to consider, among the myriad other reasons to vote for or against candidates, who each candidate might appoint or vote to confirm to the Court because, as RvW enforces, the law on abortion or anything else is only really whatever the Justices say it is. Let the People write down the answer to this question and we will be relieved of much of this ongoing angst. By instead inventing an answer subject to change, the Court gave us a cheap short-term fix that is costing us much more in the long run.

Nice level statement that ignores the historical reality of the SCOTUS -- that it has always been political. From its first decision when the 'men' on the Court were among the so revered 'founding fathers' to RvW and since (though now not all the judges are men). This comment reflects the idealized and uninformed historical view that the constitution was perfectly designed by a set of demigods who could see into the future for all time. Presidents and congressmen have always been elected for political reasons and the composition of the Court has always been among those political considerations.

Arguing that amending the constitution is easy simply ignores the huge amount of political energy (money and otherwise) spent on passing the prohibition amendment and repealing it, women's right to vote (btw, whatever happened to the ERA?), not to mention the 13th, 14th, and 15th amendments arising as they did out of a war fought by wackos insisting on their 'state's rights' to mistreat human beings.

Hiding behind simplistic statements like 'we are governed by laws, not men' ignores the messy reality of human politics -- that all these laws were passed by humans who are, indeed, infinitely fallible. This includes the humans we now collectively refer to as our founding fathers.

Living with other human beings is a messy business, the balance of rights between these human beings is very complicated (an understatement) and the Supreme Court has a rightful place in determining that balance, which was, indeed, the intention of those founding fathers.

I disagree with RyanDonovan when he says "Let the states have their varied laws reflecting the views of their varying majorities, and if it is important enough to treat uniformly across the nation, let the People amend the Constitution to say so."

Constitutional amendments can only happen on a majority vote. I will not accept a majority-vote on defining a right-to-privacy simply because I believe in "justice for all", not "justice for the majority".
If all decisions were to be taken by a majority vote, you wouldn't need a judicial system. The judicial system is there precisely to ensure that the "right decision" is made, EVEN if it is unpopular.

But he does make an interesting point. The "all persons born..." clause was written when there was no way to tell when a child was conceived; birth was a lot easier to pin down. So that is when the authors saw a person coming into being.

But if a fertilized ovum is held to be a person, the logic behind not making that the point that citizenship seems shaky. (Not the literal interpretation of the words mind. Just the logic behind it.)

It would be completely unnecessary. You can't deport a fetus without her mother. She can't vote or run for office. Combine that with the fact that it would be a waste of resources to grant citizenship while a miscarriage or abortion is still a real possibility and it argues against such a proposal.

You can deport infants without the parents. We just don't, except in the rare case where the parents are already abroad, because that would be cruel. But I shouldn't have limited my example to deportation. A fetus can't even exist separately from the mother. There's reasons to want official documentation for an infant. To prove who the mother is at the very least.
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You're making the argument that something should be done because it can be even though there's no reason to. That resources can be wasted after birth isn't an argument for extending waste. That the likelihood of waste is less after birth is a reason to limit citizenship to after birth. If you really wanted to make a point and not just try to jab at pro-lifers, you could ask why we don't limit citizenship to some point long after birth. Some do think we should amend the Constitution to do just that. There's no reason why personhood and citizenship need to go perfectly hand-in-hand.

"Combine that with the fact that it would be a waste of resources to grant citizenship while a miscarriage or abortion is still a real possibility and it argues against such a proposal."

Sorry, miscarriage won't have the same meaning anymore, if an embryo is a full legal person. A death of a person warrants legal investigation into the cause of death. If the mother's body expelled a person, thereby killing him or her, the mother has committed manslaughter or homicide. She will serve time and become a felon.

But now you are making excuses of convenience. Either you call it a baby, and person, created on American soil (born) or not. You can't have it both ways. Why not deny citizenship to a child born and is sickly?

Lastly, since the mother's body is forfeit to preserve the life of the child, so to should the state be able to extract whatever tissue or other means from the father to ensure the life of the child. Blood, organs, whatever it takes. If the child falls ill, the parents are meat to cure it.

When to grant citizenship is a practical matter, not a philosophical one. The unborn baby is a person (in the philosophical sense, not necessarily the legal sense). Even born adults need not be citizens. I think insulated Americans tend to think birthright citizenship and personhood are necessarily one and the same. To foreigners, birthright citizenship is an even odder concept than the right to keep and bear arms. The American bubble-think that the Constitution is a codification of universal natural law is possibly the most irritating aspect of American political culture.
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Even though I haven't put much thought into it, I'm going to say I'm for delaying citizenship until the person has resided in the state for at least 10 years just to try to dispose of the ridiculous argument that all persons must be citizens.

An interesting discussion. I was thinking about it last night, and this thread helped a bunch.

I think that the idea that your body is yours to do with entirely as you please, and that the pre-baby's rights are always subordinate to the mothers has its origins in some of Europe's least palatable philosophies.

One of the most compelling pro-life arguments I read (I'll try and find it tonight) spoke about the vessel as having value from its potential. Even if the lump of cells does not posses a soul, if you leave it alone, it *will* grow into a person, or at least, have the same chance as any other pre-baby. One of the core American mores is the tenet that everyone deserves the same chances, and no-one, not even the mother, has the right to take away that chance.

Framed in this light, the mother has a severely diminished right to choose; she had her fair chance to be not-pregnant, now she has to give her potential-baby its fair chance to be to be not-dead. That leaves room for abortions only where the woman's chance to be not-pregnant was taken from her; rape, obviously, but there are other cases.

As I mentioned earlier, women do not get equal chances to be not-pregnant. Certainly, men have a natural advantage here, but since that is beyond our power to correct, I'm going to ignore it for now. If women have a duty to provide a pre-baby with all its natural chances, women also have a right to any and every chance to remain not-pregnant.

For the same reasons the woman has no right to interfere with the chances of the pre-baby, Parents have no right to interfere with the woman's chances to stay not-pregnant. This includes proper sex education and access to contraceptives.

The rights of the parent are subordinate to the rights of the child, and that includes religion. Parents have no religious right to damage their daughter's chances to be not-pregnant. Tangentially, since parent's rights are subordinate to their children's rights, parents have no right to mutilate (circumcise) their children's genitals.

For the same reasons, parents do not have the right to withhold education in science or to force their children to participate in religious activities.

It should also follow that each child has a right to equal treatment by the government. We have an obligation to provide the same quality of education and medical care to every child. To skip a few steps (my rant is already too long), the Federal government must play a strong role in education and health care.

If I may make an understatement, I do not see many conservatives arguing for equal health coverage & education for children. By adopting only the right to life and abandoning the rest, the only thing accomplished is to make life harder for women. The instant their philosophy would improve the lives of the poor and the sick, they abandon it. For that, they should be shamed.

As you pointed out above, it is equally possible for liberals to be pro-life. If you look at the argument in reverse: Parents rights do not trump their children's rights, therefore parents do not have the right to an abortion - except in those states where their contraceptive rights are otherwise infringed upon.

I don't think either side of the argument are anchored to that tenet. I think liberals support abortion as a left-over from eugenics. 'My body, my choice' is very Ayn Rand, and that woman was a dumb bitch.

Conservatives ground their argument in religion - the same religion that they have used to justify mistreating everyone that they have ever mistreated.

From all this, I have decided that abortions are morally unacceptable in those places where they are permitted, but absolutely acceptable in the states that try and suppress them.

As a practical matter, a movement may be more effective if it has a narrow focus (e.g., abortion, taxes, malaria) so it's not necessarily good for the pro-life movement if it expands into health care and education.
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Having said that, I'm pro-life and for universal health care, universal education, and more open immigration. "Conservative" and "pro-life" aren't interchangeable. You don't see the same people at Tea Party rallies and March for Life. Many conservatives are nominally pro-life and many pro-lifers are nominally conservative. Some conservatives are even pro-choice and some pro-lifers are liberal. Barry Goldwater was pro-choice and Jimmy Carter is pro-life.
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Parents have certain rights over their children. In fact, they're not rights as much as they are obligations. Parents can force their children to receive vaccinations or eat vegetables or do their homework. But the right to life trumps all. We can debate whether the children's rights or the parents' rights/obligations prevail in other situations. Education and health care are universal human rights like the right to life that should prevail over parenting rights. Certainly a parent can't force belief but I'd consider attending religious services or secular services (e.g., a sibling's graduation) as a spectator within a parent's rights.
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Circumcision has therapeutic benefits. I'd oppose it if it didn't.

"For the same reasons the woman has no right to interfere with the chances of the pre-baby."

The thing here is how implicitly a pregnant woman becomes a baby bag and loses her rights of self determination. Interfere, ffs, why stop at birth, after all her body provides food, which is vastly superior to any manufactured stuff, why not make her a slave for her entire exitence?

Unpalitable history? Women were property well into the last century. Female mammals, including human ones, have always had to cope with deciding how to best ensure their own best reproductive outcomes, for which males are in competition to control to their own advantage.

The fundametal problem with this debate is men, who almost to exclusion act as if pregnancy is like carrying a suitcase, or a night of baby sitting or something. And the undercurrent in all this remains the same. Men's intererest is making every sperm precious. It is in your selfish interest to make every female bare the exceeding high cost of your reproductive chances.

If or when technology makes it possible to harvest the father's body parts to save his own children, and the state comes after your bits in order to save your kiddy, then y'all will change your outlook and fast.

Some good points. I don't think this makes women 'baby bags' - so long as they have unfettered access to contraception.
Also, we are pretty damned serious about the parents obligation to feed their children. While we don't compel mothers to breastfeed, the good ones do, and we keep a watchful eye on baby formula for those that chose that instead.
After the pre-human (baby) pops out into daylight, we owe it an awful lot. Here, under the current laws, men become little more than a meal ticket. Maybe my inner cave man wants each of my sperm to be precious, but I am terrified by the thought of a woman taking my genes without my consent. She can do whatever she wants with it, and I have to foot the bill for the next eighteen years. I declare sexism!
Technology does make it possible to harvest a father's body parts to save his own children. It happens fairly frequently. If the risks to the father were similar to those involved in pregnancy, perhaps the father should be obligated to participate.
I think that 'My body, My right' can be traced back to a misunderstanding of the idea that we are entitled to do whatever we please with nature.
Despite my post, I do support abortion. I think they are a necessary option in some circumstances, and I'm not qualified to detail them all.

I agree, roe vs wade let everyone know that the supreme court had massive importance. that unchecked leftists could reinterpret anylaw to mean almost anything.

we see this flippant attitude towards meanings and the rule of law in obama's inaugural speech. where individualism requires an everexpanding, ever more intrusive and ever more demanding government.

abortion at its heart is about what constitutes a human life. there can be good hearted people who disagree on this point. but for all those who imagine preventing the murder of children comes in second to women "feeling discomfort" or "kinda u know, not wanting a kid or wutever" or some talk about privacy, as apparently murder can be a private matter now.

to all those people you have nothing but my unending disdain and scorn as morally inferior human beings.

I can tell you from my personal experience that having a nuclear meltdown at the end of the first Trimester makes parents think very intensely about pros and cons of abortion. After a day of deliberation, we decided to reserve air tickets (to get my wife, her foetus, and our son out West), not an abortion clinic. Every morning I greet my daughter, I am reminded of my decision.

Citizens United.
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Just because a system produces a law we disagree with doesn't necessarily mean the system is what needs fixing. Otherwise, you should support me for dictator because I would enact the health care system you prefer.

The urge to use the coercive power of the state to impose personal beliefs and opinions is strong. Telling someone else what to do seems irresistable. Too bad hubris and hypocrisy can't be used to heat houses. Saunas would be free.

Congress controls all but the Constitutional original jurisdiction of the Supreme Court, and could remove abortion from its consideration at any time it chooses. Fortunately, except for a few cranks who have actually proposed such bills, our legislators have too much respect for the rule of law to take the banana republic way of dealing with this problem.

I think it's pretty explicit that Congress can do as it will with everything but the original jurisdiction. Just exactly what that includes can be argued. But of course, without a Judiciary Act, there are no Federal Courts at all except SCOTUS and its original jurisdiction - but neither a specification of the number of Supreme Court Justices nor any money for the court's operation. A judge cannot have his pay cut while he is in office, but Congress can make that job a cipher. Annoy Congress enough and they will impeach and convict.
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Congress really runs the show in the US. They can remove officers from the Executive and Judicial Branches, but a member of Congress can be removed only by the members of the chamber he sits in. The Constitution was written by men who wanted the Legislative Branch in ultimate control.
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But all those lawyers do seem to share a respect for the rule of law, regardless of party. It seems to me that we often get so wrapped up in our disagreements that we forget the unquestioned fundamentals that we share as a matter of course.

The legal basis of Roe v Wade was nothing new; substantive due process appeared shortly after the 14th Amendment was passed. The 9th Amendment, which states that the basis from which we start is that each of us has every right imaginable, puts the burden of justification for limiting any right on the jurisdiction that would do so.
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I am not impressed by the words "child" and "murder" when applied to the entire period of gestation. How many funerals are held for miscarriages among the anti-abortion people?
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A lack of enthusiasm for contraception is a vast hypocrisy among those who oppose all abortion.
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Until a fetus is capable of living independently, a woman can reasonably claim that she is being held to involuntary servitude, contrary to the 13th Amendment, if forced to carry that fetus.
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I don't think anyone likes abortion. I also believe that anyone sane does not want to see unwanted children forced into life. We face two unpalatable choices. I personally agree with the division of abortion by trimester. In the first, it ought to be unrestricted; the second, very difficult, depending on the life and health of the mother; the third, impossible, except for the life of the mother. The states have always had the right to legislate concerning third trimester abortions.
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Abortion in the first trimester will never be illegal again; a majority of the people would not stand for it. That is all I consider of ultimate importance in this debate.

"Until a fetus is capable of living independently, a woman can reasonably claim that she is being held to involuntary servitude, contrary to the 13th Amendment, if forced to carry that fetus."
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It's claims like that that turn living constitutionalism into a laughing stock.
."I don't think anyone likes abortion."
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I meaningless statement oft recited by pro-choicers. Kind of like "I don't think anyone likes bypass surgery." Sure, they may not like the act itself but the point of the act is the end result which people do like.
."I personally agree with the division of abortion by trimester."
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The trimester framework was abandoned in Planned Parenthood v. Casey in favor of a viability distinction. Absolute right before viability. State can ban after viability except for health or life of the mother. "Health" has been interpreted to literally mean any reason offered by a medical professional. So in practice, one can obtain a legal abortion at ANY point in a pregnancy if one can find a doctor willing to do it.

It's quite rare to read so many fallacies put together, both in the article and in its related comments.

I am not sure whether you are impressed or not by the words "child" and "murders" is relevant to the issue of knowing when the life of a human being begins. You may not be impressed by the word "genocide", when applied the Armenian people... well, everyone knows genocide applies for Jews only...

It's not because you've never seen an unborn child's funeral that it doesn't exist. Also, funerals are not my first criteria when it comes to deciding whether an infant is alive or not.

"Anyone sane does not want to see unwanted children forced to life". Your ability to decide who will be glad to be born, and who will not, is quite astonishing. But of course, you are right : better dead than born.

Strange however, this lack of confidence in democracy our dear columnist shows, whenever the public opinion opposes his own personal opinion. I do not quite see the point. Is it a plead for a benevolent progressist dictatorship in America, when its voters are too dumb to see what is right an what is wrong ?

RR,
There's a bit more nuance in some of your considerations.
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"Until a fetus is capable of living independently, a woman can reasonably claim that she is being held to involuntary servitude, contrary to the 13th Amendment, if forced to carry that fetus." This applies in a rape situation, unless the rapist can somehow carry the baby for the woman. I hope this thinking is not unreasonable to you.
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I am not sure it is true any pregnant woman can abort any time for any reason so long as she can find a doctor to do it. That simply is not true. You've got to give the medical profession as a whole a little more credance than that.
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The viability point remains uncertain. I personally think Casey was a bad decision.
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The whole idea that pregnancy is in any way involuntary servitude is unreasonable. If I forced you to grow your hair, that may violate the 14th Amendment (this was actually a case though it involved a requirement to cut hair) but argue the 13th and Justice Ginsberg herself will laugh you out of court.

Interesting perspective.
Does this mean you think an "illegimate rape" victim should not even think about aborting the conception that results?
Second, I suppose Ruth Ginsberg can speak for herself. She would know how, I further suppose.

bampbs, I really like you post. It summed up the law, raised the issue on contraception (noting the hypocrisy of folks opposed to it), and stated your own personal view without fanfare and name-calling. The best blog post I have read on the subject in a long long long time. Thanks for the pleasure of reading it.

I am entirely aware of Planned Parenthood v Casey. I stated my own opinion.
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Do you think it's easy to find medical professionals willing to participate in a third trimester abortion?
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Do you prefer Scalia's fraudulent originalism? He picks and chooses from the Constitution quite as much as any Justice ever has, or, I suspect, ever will.
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Frankly, if you don't see the abortion issue as a choice between two evils, you are not capable of rational thought on the matter.
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Address the gross hypocrisy I point out. I'm not interested in your boilerplate.

If you are interested in democracy, I suggest you check the latest polls regarding abortion.
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To be honest, I regretted the timing of Roe v Wade, because the state legislatures were addressing the issue at that time.

Let me address two questions to you. First, in the third trimester, why is the life of the mother of greater value than the life of her unborn child... who is almost certainly a viable human being?
And second, if we determine death as the moment when the heart stops beating, what exactly is happening when a fetal heart starts to beat?

Dear bamps - Your thinking is totally confused. The murder of a pre-born baby in the first trimester has nothing to do with the majority opinion but how the courts rule, so it can easily be outlawed with the right Justices in place.

While you are not impressed by the words child and murder, it is the truth. You denial of the life of the baby by using the word “fetus”, does not impress me. The vast majority of the mothers who become pregnant did not get in that state involuntary. You are obvious a strong believer in slavery because as a slave’s life can be rightfully ended by its owner/master, you believe that a women can rightfully end the life of her preborn baby. There is no difference, please ponder that truth.

1) Rule of nature, individuals at reproductive age take precedence over potentially reproductive ones.
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2) The third trimester is treated differently than the first two because of the advanced stage of the fetus' development. Still, in the case of a life or death choice, the mother's life still takes precendence. But this is left to her, because she is the one who is conscious and that fetus is her child, that her body brought into existence. Every cell is there having fed on her flesh.
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3) A heart beat is not the complete definiton of life or death. There is brain death (see Terri Shiavo case), and the embryo is alive before it develops a heart. But a heart beat develops way before there is much of a brain stem, or lungs, or bones, ears, fingers, toes, muscles, a stomach etc.
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Because the exact arrival of 'personhood' in the sense of the moment flesh should be treated one having moral standing... I think the court wisely pushed the state out of dictating that decision.
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Pregnancy is a huge physiological undertaking. The fetus applies all sorts of chemical manipulations upon its mother to extract nourishment from her. It may pour so many hormones that she develops diabetes, and the placenta itself invades into her own tissue. Somethng you guys aught to remember.

I think it's worse than that. I think that the mess that is the current Congress is because of Roe v. Wade.

Roe v. Wade showed that the Supreme Court really mattered. Therefore, it really mattered who got to choose the Supreme Court judges. That meant that the presidency was a big deal, but also Congress (at least the Senate), because it got to vote up or down on the President's nominee. This is why Congress has become so absolutely polarized, with neither side willing to give the other an inch of ground.

The civil war over abortion has been fought for 40 years in Congress, and it isn't over. Not by a long shot.

I think the mess is too much government generally. If the Supreme Court matters more the presidency and congress should matter less, the appointments and confirmation notwithstanding. But when morality and philosophy and ethnicity and a third of the economy are all governed by 537 elected leaders, it gets pretty important that the people elected seem simpatico.

I believe you are absolutely right. The so-called "polarization" began with Roe. A key moral issue that can never be solved through legislative adjustment can ONLY create polarization. Compromise is impossible because the SCOTUS, in its pride, will not permit compromise. By keeping this issue open and impossible to resolve the Court has caused, sustained and steadily amplified political polarization.

Forty years ago when Roe came down I said at that time to my wife, "This will eventually result in civil war." It may have seemed a lurid comment at that time but the anger, polarization and hostility of politics since Roe is something I, in a long political memory that goes back to the Truman presidency, have never encountered. There are already those -- nincompoops, in my opinion -- who talk of "secession."

If you feel absolutely that this is a life or death moral issue (Roe) and if the issue cannot be resolved through the political process -- which the SCOTUS decision will not permit -- then the only way to resolve it is through violence.

We hear all the time from those on the Left who abhor violence in today's America and weep and wail over "polarization" and "Repugnicans" and so forth. But, if you are denied the right to democratic representation on matters of urgent moral concern, why WOULDN'T you be angry?

We hear it all the time: "Ballots, not bullets." But, what if balloting is not allowed? So long as this decision stands the anger and polarization will grow. It can only end one way.

It's a hard issue, because we're pretty near consensus that the government should prevent and punish murder and, pending the return of Jesus, we have no final answer on whether abortion is murder. As a baseball fan, I tend to want to give a tie to the runner, but I don't think anyone's repugnant for how they come down on the issue.

But as to the supreme court, we live in an imperfect world and have neighbors. The country was meant to be a Republic for just that reason. We're meant to have democracy and we're meant to have checks on that democracy. Anybody who would take up arms against the country because they don't like a law or don't like a ruling I'll gladly shoot back at. I never did defend my country against a foreign enemy. I'd be grateful for a chance to make up for that with a domestic one.

On the other hand, between men, at least, standing toe to toe and beating each other bloody is sometimes the most efficacious and least harmful method of conflict resolution. It might have been better if you'd been right in your prediction.

I agree that Roe is the root cause of a lot of our polarization. But I'm not sure that we can say that the question "can never be solved through legislative adjustment." At the time of Roe, exactly that (gradual legalization across a variety of jurisdictions) was happening. Roe did two things:
1) it short-circuited the gradual process, and
2) by doing so, it gave those opposed a symbol to rally around.

Gradual legalization would never have spread across every part of the country. (There are, after all, counties where Prohibition on the sale of alcohol is still in place.) But it would have spread so far that the few exceptions would have been of little importance. And a court decision at that point would have had little impact on the political realm.

Just to clarify and shorten, I think if the federal government can't answer the question of whether abortion is murder, and it can't, it shouldn't be telling the states what's right. I also think if the states can't answer the question and they can't, they shouldn't be telling the people. But I think I'd rather vote that way.

But I'm glad for Marbury v Madison. I really don't want to negotiate with you sonsabitches for every decision I want to make. I'm thankful the constitution puts a lot of life outside the reach of Democracy and I accept a bad decision now and again as delivering a lot of value for the cost.

I've recently soured on Marbury v. Madison. I believe in inalienable rights but unless I'm crowned emperor, we have to leave it up to some political organ. I'd prefer legislative review of judicial decisions over judicial review of legislation. The Constitution does allow that through the amendment process but I think it's far too onerous. I'd like an alternative amendment process that requires only a stable simple majority. E.g., the same bill has to pass for 3 consecutive years by simple majority.

Terry Schiavo made me a Marbury fan for life. Especially in a techno-enhanced world where people don't work that hard and have energy left over mischief. Tip cows and run over my mailbox but let's don't all make a hobby out of democracy. I don't want to google on my phone whether creampuffs are still legal and then check again that it's ok for me to smile after eating one.

No doubt courts will occasionally produce desirable results. I'm sure many Iranians say the same thing when defending the need for the Guardian Council which serves the same function as our Supreme Court sitting in judicial review. Judicial review, no less than democracy, can change the law. E.g., what if the courts ruled in favor of the Schiavo family?
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There is something to be said for rule by a council of unelected wise men. But in a pluralistic society, their decisions should always be reviewable by the people or their elected representatives, not the other way around.

I'm thinking the Senate should be replaced with a sort of House of Lords filled with "wise men" each serving a single long term (10 years?) nominated by the president with approval or rejection by the House.

Before Roe, abortion was "solved" through legislative adjustment -- each state established its own rules via the democratic process. The Supreme Court short-circuited this process. Our politics and our culture have been seriously harmed by this decision.

This is implemented in many European (western) countries with the more reasonable requirement that an election must occur between the legislative voting. Say, three consecutive congressional sessions in your suggestion. In the US, however, this is getting a little pointless, given the number of 'safe' gerrymandered voting districts. This practice skews the term 'representative' government.

For instance, Sweden has amended its constitution (basic law) this way as recently as the 1990s when the voted through a separation of church and state -- effective in 2000. About time, many would say, after 500 years.

There you have really gone beyond the pale (as in more than over the top) comparing the SCOTUS to things in Iran, and the Guardian Council? This is pure idiocy, beyond simple polemics. The interplay between the legislative and judicial branches of US gov't is simply much more complicated than you let on here. And, indeed the US pluralistic society does involve society reviewing judicial decisions.

This thread is also silly in ignoring the extreme controversy surrounding many SCOTUS decisions. While we have lived through the RvW issue, many of the others had settled by the time we were born. But they were no less controversial with advocates on either side screeming bloody murder, much like the abortion issue (as say in Brown v Board). This issue will also settle, once reasoned argument prevails. But many will insist on keeping it going even then.

I do have a couple quibbles, though. First of all, it is still not an orthodox view that the Second Amendment permits individuals to "own whatever guns and accessories he pleases." Even the most expansive mainstream view of the Second Amendment does not find a right to own tanks or nuclear weapons. Rather, it views the Amendment as protecting the right to own such weapons as an individual might provide himself with if called upon to serve in a militia. As Scalia wrote in Heller:

"Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad... Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

The second qualification I would make is that the right to marry any person of one's choosing is not a fundamental right, it's the consequence of a fundamental right. Marriage is a civic right - there is no natural right to have the state recognize any marriage. However, there is a natural right to equal treatment under the law. Thus if the state chooses to recognize any marriage, it must recognize all marriages.

If the right to equal treatment under law means the right to marry whoever I want, then does it mean my right to marry a six-year-old? My sister? My daughter? (For that matter, is it wrong for me to marry my brother because it's incest, but not because it's homosexuality?)

That is: I think your logic is flawed. Equal protection under law does not in fact mean that the state must recognize all marriages.

The issue of marrying a six-year-old seems obvious. Marriage is a contract, and minors cannot generally enter into any legally-binding contract. A marriage contract between a parent an child would almost certainly be considered unconscionable due to the likelihood of it being the result of coercion. Incestuous marriages are a trickier issue, and I'd be inclined to think that they merit equal treatment (no matter how repugnant).

Would anyone really want to marry their brother? There are any number of things that you shouldn't do that we don't need to make illegal on the understanding that people can just be trusted not to do them.

Marriage is a legal contract. You cannot make a contract until you are 18. You cannot make a contract without your parents permission until you are ~16. Most state laws would still prohibit sex if you somehow managed to marry a 6 year old or a dog.
Incest can be put as a public health issue, but as long as there's education about the risks to any offspring in school, I could really care less. And before you point it out, a parent can't give permission for a minor to enter into a contract with the parent.
These are already established legal precedents although they are usually more concerned with kids signing over their money. However, cases of sex contacts and what not have established that the same contract precedent can be used broadly for all contracts. (sex contracts don't work because you can't sign away your basic rights, such as not to be raped...)

List of thing people can do, but shouldn't do, but that probably don't need to be specifically against the law.
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1. Put grapes in your socks before you go to work, to save money on wine.
2. Put up a sign advertising "Uncle Ben's Orphanage and Sausage Factory"
3. Huff Cement.
4. Put a red nose on the deer you just shot, then drive around town with it strapped to your car right before Christmas
5. Change your name to "Bruce Willis is the Ghost!"
6. When called to court as a character witness for your friend, go dressed in your tiger pajamas
7. Wear your tinfoil hat upside down, so you can hear the government's thoughts! Brilliant!
8. During rush hour, use the crosswalk, and then back, and then again, and repeat
9. Join a protest against a death row inmate with a sign "He borrowed five dollars from me, and then said he didn't!"
10. Major in Buffyology

The difference of course is that those things are harmless or at least the cost of enforcement is greater than the harm reduction. If I had to take a position, I'd say the opposite is true for anti-incest laws. I'm ready to change my mind if I'm shown convincing evidence to the contrary though.

Only the farmers have won. If there was a season for gratitude for setting up a town's first midgets riding tigers jousting tournament, they'd show it. My work here is done.http://www.youtube.com/watch?v=N_dFfooyZpA

It never ceases to intrigue me how the 'pro-life' supporters (read: predominantly right wingers) are the same folk who vehemently oppose gun control & frenneticaly quote the Second Ammendment to justify their indiscriminate right to bear arms (read: lethal weapons/killing machines), that take more lives than they supposedly protect! And these are the same wonderful folk who vehemently oppose same sex marriages between consenting adults!
How blatantly hypocritical!!

Wait till they isolate the "homosexual gene" and peope want to start aborting their children on grounds of not wanting to raise a homosexual. Care to see how much the Democrats respect that right to "privacy"... as much as they respect my right to have a weapon beside my bed, in my bedroom, at night.

Why bring homosexuality into it? We already know which gene causes gender. And I don't see much support, right or left, in the West for the sort of sex-selection abortions practiced in India and China.

Because I'm describing two very politically active groups within the Democrat Party who naturally have conflicting intersts. Those that demand abortion be available on demand, and those that demand gay rights. As far as I know gender selection isn't an issue in the US and thus isn't politicized in the Democratic Party.

The discovery of 'gay genes' (if they exist) will indeed be an interesting day. I think it would show up the Republican hypocrisies just as much: How many pro-lifers would want to kill their baby because it is gay? Gay babies destroy the sanctity of marriage, after all. They should be stopped while there is still time!

Also, I fully support the idea that the government should keep its nose out of the bedroom. That's one reason I vote for Democrats. I wasn't aware that guns in the bedroom had become an issue. I would advise care when enjoying your gun fetish, though. Wasn't there an actor that accidentally shot his partner?

What's conflicting in the Republican Party? The party is pro-life. When did the Republican Party stand for killing anyone other than criminals or... going on a ledge and outside the discussion... allowances for military operations? Am I missing something? As far as I know even Euthanasia isn't of issue in the Republican party. The Republican party is against killing and aborting innocent children/people etc..

Who do you think would be considering aborting their children "because they have the homosexual gene"? I'm seeing homophobia as far more prevelent in the Republican Party than the Democratic Party. (Not that it doesn't occur in both.)

I'd be delighted it it didn't happen, of course. But I'd also be surprised if, for some, opposition to abortion didn't come a serious second to their opposition to homosexuality.

I'm not quite sure what "homophobia" means. Doesn't quite sound like a medical term but rather something with political connotations and purposes.
That aside, maybe I'm wrong and maybe I underestimate the Democrat Party's conviction that abortion needs to be readily available, and that groups within the Democrat Party unshakingly support that conviction regardless of the consequences or implications.
The ironic thing behind Roe V Wade (40 years ago as the article states) is that the Democrats, since the ruling, have aborted much of their future voters. If Roe V Wade never took place I suspect the 2012 election would not be anywhere near being close.
From a random site which I believe to be correct:
"African Americans comprise 13% of the population, yet African American women have 35% of abortions. Their abortion rate is three times higher than average and four times the rate for white women. Since the Roe v. Wade decision, nearly 17 million black babies have been aborted, reducing the potential black population by almost one third."http://www.illinoisrighttolife.org/AbortionImpact.htm
Politically, that's alot of voters...

It would be interesting to know to what extent the abortion rate that you cite is due to lack of available contraception. To that extent, it isn't really accurate to say that the number of abortions is the sole cause of the lack of future voters -- all of those uses of contraception in other demographic groups would be a cause of fewer voters, too.
I would also note that, at the time of Roe v Wade (which I think was a terrible decision, as a matter of law) abortion was being gradually legalized across the country. Absent Roe, abortion would have become legal across the vast majority of the country over the course of the ensuing decade. (Not everywhere, of course. But then, there are still places where Prohibition is still in place on sales of alcohol.)
Liberals would have been better off without Roe, not because they would have more voters born, but because they would not have had a mobilized religious right to have dealt with over the ensuing decades. It's so much harder to get people worked up over a series of democratic decisions than over a single sweeping court decision.

Yeah... contraception is readily available across the United States. Except perhaps for some law students that go to incredibly expensive law schools around DC (Call me!).

I respect your desire to throw some stats at the situation, perhaps to convolute it up, but an abortion is an abortion. They were lives that were conceived but were never allowed to be born. Why would you assume that abortion would become legal- the Economist just went on about states that were trying to regulate it out of existence? I'd presume that republican states (assuming republicans stand for what they say they stand for- never guaranteed), which constitute much of the internal continental landmass, would have banned it or kept it banned.

You imply that liberals are fans of the ballot box- only when it suits them. They have their hands all over the legal system. By their very nature if it wasn't Roe V Wade shoving something down people's throats, it would have been something else.

It is highly unlikely that there is a "gay gene". Much more likely is that there are certain genes that predispose a person, along with epigenetic factors that "decide" if they will or won't actually be gay.

Twin studies so far have found correlation but generally well below even 50%. This means that there is a genetic component (higher correlation than non-genetically identical siblings) but that environment (epigentics) plays a significant role.

Contraception is neither free, nor available to everyone. I'm not just talking about minorities either. Poor people of all colors in the bible belt have less access to sex ed and contraception in adolesence than middle class and rich kids in California.

and, by the way, a lot of people, myself included, see abortion as "after the fact" contraception through at least the first 3 to 4 months. Most of us, myself included, think it would better serve everyone if that contraception was easily available (along with good sex ed) *before* doin' it so we'd have far fewer unwanted pregnancies to begin with. That is the only real solution to abortion.

Intriguing... so, in your mind, there are people in this country that, if they wanted a condom, could not get their hands on one? You also believe that there are people who want to know about sex, but don't have access to the materials/resources to learn about it. Other than a specific law student that goes to a $40K/year law school, who professes to know ALOT about sex but who also professes that she cannot afford contraception, who are these people that you speak of?

Let's see... who cannot afford contraception? People working minimum wage, for some reason they think food and shelter are more important (and min wage = ~$15k/year). A box of condoms costs more than a day's worth of food. Contraceptive pills are available cheaply in those states that allow Planned Parenthood to operate, but those aren't the states where the poor people live - think red states, and that's where the babies are being born (sex is cheap entertainment for po' folk). Of course, that's assuming they ever got sex ed, which is very unlikely in the South.

Of course, your fixation on that law student (who is probably deep in student loan debt) tells me that you're either a troll or you just hate women... I'm thinking both are true.

My understanding is that if you make minimum wage you cannot afford to live- otherwise there wouldn't be these livable wage campaigns to raise the minimum wage- so I would think contraception is not even relevant here. But, you're describing homeless, starving people who can think of nothing more to do with their time than have lots of sex, who cannot work that extra hour in the day to buy a pack of condoms... possibly because of all the time they're devoting to having sex.
Regarding the law student, she is kinda cute in a dorky, naive, have the Democratic Party use and abuse me, kinda way but... I don't know- you're defending her attempt to pick people's pockets for an active lifestyle that noone else has anything to do with- hey, you might have an in with her!

McGenius,
Homosexuality cannot be a directly inheritable gene, since anyone who exhibit its symptoms cannot procreate and will remove themselves from the gene pool for the next generation. It could, theoretically, be an inferior gene like those for haemophilia (in fact, we could even call this theoretical Homosexual gene a 'Homophilia' gene :P), but that would raise all sorts of mess because females with latent Homophilia genes could be subject to all sorts of discrimination, so information on Homophilia gene would be the most strictly private information.
Such mentality lead to Honor Killings and Tea-libanism.

"A box of condoms costs more than a day's worth of food."
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What are these $10.50 luxury condoms you're buying? And good for you for going through a box a day.
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Didn't know sex ed was a requirement for buying condoms.

For what it's worth- I know nothing about genetics with my background being in computers- from a conversation with someone with a background in biology: Genetics is complicated beyond being complicated as genes turn on and off depending upon the environment that they're in, i.e. acid levels, surrounding proteins, etc.. It's as if the contents of a library change as a result of the change in pressure and temperature. So... I suppose it could be genetic... depending upon the environment the genes find themselves in. We know of historic societies like the Spartans where homosexuality was practiced quite frequently. I suppose as much as people declare (derrogatively) that some heterosexual people have homosexual tendencies, that some homosexual people have heterosexual tendencies, and that might be just enough to procreate a few times in life.

A day's worth of food is less than $10.50 if you go to a grocery store.
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The deal with sex ed is they teach you how to use condoms (or they did when I was in HS in the early 80's), and why to use them. Today kids get a lot of disinformation about condoms' effectiveness to scare kids into the wholly un-natural (for teenagers) abstinence. Or they do buttsechs instead to avoid pregnancy and claim "virginity" but are then far more likely to get STD's...

I extrapolated from the federal poverty guidelines to get $10.50. A more thorough search reveals that US Census says the average America spends $9.70/day on food. The detailed breakdown suggests that the average American eats out the equivalent of a fast food meal a day almost every day. If anything, I'd think the poor eat out more than the middle class. They may dine at McDonald's instead of Applebee's but they're not all making rice and beans at home.

I suspect the problem with po' folk goin' to McD's is that they do it because it's more available than grocery stores in poor neighborhoods (which don't have many). It's mostly convenience and liquor stores in the bad neighborhoods... and dive bars.

Going purely on anecdotal evidence, I think the causation is in the opposite direction. The failure to delay gratification, like eating out instead of grocery shopping and cooking at home, contributes to poverty.

I can see that POV, and don't doubt it's a factor (possibly a big one). The question then is, why is that so? I would posit lack of stable homes and parental indifference would be the major contributors of that (among all poor, not just specific ethnicities). Lack of access would dovetail nicely with instant gratification - it's a big ol' pain in the butt to use public transport to do a week's worth of grocery shopping (primarily the return trip).

There are probably lots of complex social factors involved. The home environment, the community, social institutions like schools and churches, the larger underclass culture... I see a lot of promise in something like the Harlem Children's Zone which doesn't just target one aspect of poverty but tries to transform the culture of an entire neighborhood. They do education (they require school uniforms and provide healthy lunches), neighborhood beautification, and provide parenting classes. While they provide social services to alleviate immediate poverty, the ultimate goal is self-sustainability. To that end they actually try to convert public housing into private. You can see the improvement but it's too early to tell if it's much more than just cosmetic.

But what is that correctness worth in the long-term, balanced against the social consequences
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It is worth everything. I think you mean the political consequences. The last Democrat President was able to increase his popularity by selling out same sex couples. There isn't any political faction whose ambitions are worth more than the rights of one single American, and you have no right to stand back and ignore the violation of the Constitution, for any reason. Those means never justify any end.
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As for the rulings that you dislike, they were settled by the appropriate process, reference to the Constitution and before the Court. That the rights of individuals, as guaranteed by our Constitution, are often unpopular is no defense at all. Openly threatening the Court, as this President has done, is disgraceful, and willfully violating it, as Jackson did, is treason.

I think the term "social consequences" is appropriate. The social consequences of politicization of the courts are far greater than the political consequences. The latter are subject to the pendulum of political power, whereas the cost of unpredictable interpretations of the law are enduring.

Those of us who were adults remember Roe v. Wade as a thunderclap. For many of us, the immediate reaction to the SCOTUS' decision was incredulity -- followed by outrage. A group of nine unelected old, white males (the type that liberals now love to hate!) met in secret and decided what constitutes human life, when it so constitutes life and substituted its own judgment regarding the sanctity of that life for the judgment of the community-at-large. What is more, it did this without allowing further discussion or legislation or amendment in the most democratic nation on earth. Not since Dred Scott had the SCOTUS so recklessly abused its power.

In the years that followed, more and more of us came to see the courts as our enemy. They were, and are, dictatorial, unappealable (at the SCOTUS level) and to be feared and even hated. There have been precious few reasons since 1973 to amend this opinion.

It is ludicrous that a nation that calls itself a democracy will not submit one of the most pressing moral issues of our time to popular referendum. That it will not allow duly constituted elected officials to legislate in accordance with the opinion of their constituents.

Roe was an outrage then, is an outrage now and will continue to be an outrage until legislative action finally emasculates that decision.

- The real issue is: When does human life begin? If life begins at conception then abortion is the taking of human life and is already unconstitutional. If it's only a matter of personnal liberty it can be construed as protectedd by the 14th amendment (although I think this is a stretch) or open to legislation.

- In Dread Scot the SCOTUS ruled that an African American had no right to have a case heard in court. He wasn't considered a person. I believe Roe v. Wade will go the way of Dread Scot as people accept that a baby in the womb is a person.

What you call an abuse of power the Constitution calls a check on legislative power. By your logic, laws banning interracial marriage (anti-miscegenation laws), which were legal until struck down by the SCOTUS in 1967 should still be in force because they were the will of the people in the states where they were on the books (hint - all the reddest of red states, the US South, had them on the books).
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Your way is the way of mob rule, not acceptable in a diverse nation founded on principles of personal liberty (even if only for land owning white guys originally).

That's why on the 40th anniversary of Loving v. Virginia in 2007, the country was still fiercely divided on the issue of anti-miscegenation laws. Wait, that didn't happen. The courts ruling in accordance to public opinion is at least a sort of democracy by proxy.
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Anti-miscegenation laws could've and should've ideally been outlawed by Congress. Congress had more than enough votes to do so.

Don't kid yourself, there's quite a few states that either wouldn't have repealed the laws or would have done so only recently without being forced. I live in Texas, and I'm pretty sure changing those laws would have been waaaayyyyy down the list of things to do for the current legislature (though the Dem's in the early 90's might have done it, led by Ann Richards).

Kinda depends on who was in Congress at the time - this was on the heels of the civil rights legislation that LBJ got through Congress (and cost a lot of Southern Dem's their jobs in Congress, opening up the "Southern Strategy" that worked for the R's until recently when the demographics made it no longer a winner), so not a slam dunk at the time. Do it in the mid to late 70's and yeah, no problem at all.
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I see parallels with gay marriage, which can't even get through most state legislatures and certainly not the House. I hope the SCOTUS strikes that stupid of DOMA law down as obviously unconstitutional. I mean, that would (and should) be a 9-0 decision about DOMA's constitutionality.... but you never know with Scalia-Thomas (have they ever voted differently I wonder).

Scalia and Thomas wrote polar opposite opinions in Hamdi v. Rumsfeld. Scalia writing that citizen enemy combatants have a right to a criminal trial and Thomas writing that the government has maximum rights over the accused. Everyone else (except Stevens who joined Scalia) stood somewhere in between. If you dig deep, their judicial philosophies are very different. Scalia's at least in the mainstream of legal thought. Thomas is way out there by himself. He's often the alone in decisions.
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DOMA definitely couldn't pass Congress today so if the Supreme Court overturns it, it'd only be doing what's already public opinion. It'll be a very interesting case. A unanimous decision in part is conceivable if they all agree that denying gay couples favorable tax treatment violates Equal Protection. I can't see a unanimous decision going any further than that.

Alabama didn't strike down their (by then unenforced) law until 2001. And this wasn't because they finally got around to it. It happened because they'd try to repeal it by several referendums yet Alabama kept voting to keep the law, repeatedly.
You're giving the South too much credit.

Yes it should be clear precedent. I seem to remember that Scalia writing something critical against the interracial marriage decision because it would set a clear precedent for gay marriage. Anyhoo, I'd count Scalia as a clear vote against though. You actually really never know with Thomas, basically I wouldn't be surprised if I was surprised. Alito, Roberts, eh. I'd still definitely put my money on at least civil unions getting the Court's mandate.

Now that you mention it, it's odd that anti-miscegenation laws weren't outlawed by the Civil Rights Act of 1964. It outlawed discrimination based on the race of spouses but not state laws banning the marriage in the first place.

It isn't entirely obvious that Congress had the authority to revoke state anti-miscegenation laws.

Note that, although the votes were obviously there, the Defense of Marriage Act didn't forbid gay marriage in the states that wanted to allow it. It just said that the Federal government would take no notice of gay marriages.

Similarly, the Congress could have said explicitly that interracial marriages would get Federal recognition. (Although, since at that time the whole subject of marriage was held to be a matter for the states, with the Federal government recognizing any marriage that a state had licensed, it was something of a moot point.)

Congress wouldn't be able to ban states from recognizing gay marriages just as they wouldn't have been able to ban states from recognizing interracial marriages. However, Congress can arguably require states to recognize gay marriages and could've almost certainly required them to recognize interracial marriages.

I don't actually think the issue of "when does human life begin" actually matters all that much, because even if you take the assumption that life begins at conception, and afford fetuses full status as persons, you still run into the my-right-to-swing-my-fist-ends-at-your-face. One might argue that is a moral obligation to provide lifesupport with your own body to another human being, regardless of the cost to yourself (if men need to stretch their imaginations, they can imagine an argument for kidney donation or physically being hooked up to someone else for a period of time with some similar effect), but self-sovereignty means that it is ethically repugnant to mandate it. To argue otherwise, even in the case of abortion, is to argue that the rights and autonomy of the mother don't even figure into the discussion. This is often excused by saying she agreed to it by having sex, which is part of that whole morass of wanting to punish women for having sex (and the ugly implication that children are a punishment), but I think we're all pretty well versed in the idea that consent for one thing is not consent to everything.

These are all canned arguments and counter-arguments at this point. You make the famous violinist argument that a right to life doesn't necessarily mean someone else has to sustain that life. The standard response is that there's a moral difference between murdering and allowing to die. To argue otherwise is to argue that there's no moral difference between standing by while kids starve in poverty-stricken countries and going up to them and shooting them.

The Supreme Court was absolutely the correct venue to strike down anti-miscegenation laws. There is hardly a better blatant example of laws that violate constitutional rights. And even if the legislature did pass a law outlawing anti-miscegenation, thats all it would be, a law, not a constitutionally protected right. The right to interracial marriage was rightly found to already exist in the constitution.

If it already exists in the Constitution, it existed prior to the Supreme Court "finding" it. Constitutionally protected rights are laws. It's not like the right to bear arms didn't exist before Heller. Had it been enacted by Congress, maybe a state would sue, and then the Supreme Court would declare that it agrees with Congress that it's a constitutionally protected right. No difference except that it's given more legitimacy.

That is my point. That right to interaccial marriage existed before via the 14th Amendment. Someone DID sue, and the Supreme Court found anti-miscegenation laws to be unconstitutional. Anti-miscegenation laws should be considered unconstitutional, not merely unlawful, thus the Supreme Court, not the legislature, was the correct venue to decide this issue. And my point about the right already existing in the constitution was to highlight that I do not believe a constitutional amendment stating that anti-miscegenation laws are unconstitutional is necessary, because this is already provided for in the due process and equal protection clauses of the 14th amendment

This whole debate started because supamark said anti-miscegenation laws were enacted democratically as an argument that the Supreme Court should have the power of judicial review. I pointed out that the laws could easily have been overturned democratically. One can argue that the 14th Amendment already did that but if there's any doubt, Congress could've done so explicitly as it is empowered to do by the same amendment. My argument is that Loving isn't necessarily an argument for judicial review. In an America without judicial review, Congress could've overturned state anti-miscegenation laws.
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I'm not arguing that Loving was improperly before the Court or improperly decided. I'm only arguing that the same result would've been likely without judicial review. Thus whatever the merits of judicial review, Loving isn't a particularly strong case for it.

And I say once again deeming something as unlawful and deeming something as unconstitutional are two very different things, and the right to interaccial marriage deserves being classified as a constitutional right. The outcome may have been the same, but somethings are more properly defined as fundamental rights, freedoms, then being merely statutorily compelled.

A federal law banning anti-miscegenation laws is a congressional declaration that they're unconstitutional. It would have the same force, not just in fact but in law, and even more legitimacy than a judicial declaration.

Yes, it does. It does so all the time. For example, ObamaCare asserts constitutionality: "The individual responsibility requirement provided for in this section is commercial and economic in nature, and substantially affects interstate commerce." That's not from floor debates. That's part of the ObamaCare law. The Supreme Court can declare that Congress was wrong and it did in this case, finding that it's constitutional under the taxing powers, not interstate commerce. But in an America without judicial review, Congress would have the final word on the constitutionality. ObamaCare would be a constitutional exercise of Congress' Commerce Clause powers because that's what the law says, period.

Every law that Congress passes has a presumption of constitutionality, otherwise they would not pass it. However they do not have the authority to declare the laws the pass as constitutional otherwise there would literally be no point to the Supreme Court. They can only speculate as to constitutionality. Secondly asserting that you believe a law is constitutional is VERY different from declaring other existing laws Virginia's law on marriage) as unconstitutional. Third not every law that is "constitutional" in the sense that can be passed via the powers granted to Congress in the constitution, speaks to RIGHTS guaranteed by the constitution, which is what is issue here. A law passed on miscegenation may be constitutional in and of itself, however it does not guarantee the constitutional right to interracial marriage, only the Supreme Court can do that.

I surmise you are really anti-abortion. I very much doubt Roe vs Wade and its MANY, MANY progeny would still be around despite the ceaseless efforts of TENS OF MILLIONS like your self to EXPUNGE THEM unless they had BROAD POPULAR SUPPORT! You are in the minority and have to live with the Majority's moral convictions on reproductive rights and medical use of embryonic cells. Sorry but THAT is how Democracy works. If things went YOUR WAY, you would be writing the SAME COMMENT FOR ME!!!

Okay I think I misunderstood your original reply to me and then it got increasingly convoluted.
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I can agree with your original reply. A federal ban and a judicial ban would have the same effect. A federal ban may enjoy more legitimacy but a judicial ban would enjoy finality.
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My replies to supamark addressed his claim that the Supreme Court should enjoy finality because otherwise anti-miscegenation laws would have continued. I argued a counter-factual where the Supreme Court doesn't enjoy finality and Congress is the final arbiter of constitutionality. In that case, a congressional law would have the same effect and finality you desire but with the additional benefit of more legitimacy.

I don't know whether I am in a minority -- a national election on this topic has never been permitted. Roe was a decision made in private by nine unelected old white men. So, your statement "THAT is how Democracy works" seems a bit wide of the mark.

In fact, there have been dozens of referenda on abortion since Roe vs Wade. They went Pro Choice throughout the Nation including the Deep South by at least 7-1 and I think it more like 9-1. That disposes of the Public has never had a voice Canard!

"Jill Lepore makes a compelling [sic] case... The left... has been reluctant [sic] to go that road again."
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Just *last month* the US Supreme Court agreed to hear lawsuits against gay marriage restrictions.

What is the pattern of various "thorny social issues" on which the left could've litigated in the US Supreme Court, but declined? Neither Jill Lepore nor J.F. backs this assertion with any examples.
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Regarding my counter-example: in 1972, Gallup found slightly over half of Americans believed abortion decisions should be left to a pregnant woman and her doctor (here). In 2012, Gallup found roughly half of Americans supported gay marriage (here). So similar situations.

"It found that this right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy", and thus found blanket or statutory bans on abortion unconstitutional."

It seems that this court decided that one person's right to "privacy" trumps the right of a developing child to be protected from being killed. How odd. As one well schooled in biology, it seem hard to imagine educated people not seeing the termination of, for example, a 2nd trimester pregnancy, as other than killing a living being.

Dressing it up with the noble motive of protecting the "privacy" rights of the mother, does not change what is really going on does it?

Draw the parallel to a home invasion. If a person invaded your home and did to you what a baby does to its mother in the 2nd trimester, every state would allow you to kill the home invader on the spot. Just because abortion involves killing does not make it wrong.

It is an axiom of law in civilized countries that moral censure cannot be separated from intent. So, explain for us. . . . what exactly does the baby "do" to its mother that it intends? A home invader can be punished because of intent to commit a crime. What "crime" does the baby commit and precisely when during the Nine Months is it able to form intent?

It is some sign of our moral degredation that an infant in the womb -- in better times a source of joy -- is now regarded by writers such as yourself as equivalent to a home invader and should be killed on the spot.

To quote the late Robert Welch: "At long last, Sir, have you no shame?"

@Restrained Radical: Not applicable. If abortion is on the table, you are getting a baby after suffering through months of pregnancy, not by it magically appearing. And yes, for lots of women it is SUFFERING.

@A.Andros: By that logic, if someone high on drugs (because someone else spiked their food) broke into your home and assaulted you, you would not be allowed to shoot him? He has no intent. Intent is part of the judicial system assigning guilt. Intent is not strictly necessary for self defense, and that is the analogy I'm making.

It's not so much a question of the fetus' "intent" as it is that by consenting to sex, a person implicitly consents to provide a certain level of parental care to any child that may result. Obviously that doesn't apply prior to the developing fetus reaching whatever milestones qualify it for consideration as a person.

Thus, if we assume for the sake of argument that a particular fetus is a person, then the proper "home invasion" analogy would be one where the "invader" would reasonably expect to be welcomed into the house and where the homeowner knows the identity of the "invader" when deciding whether or not to kill him.

Anakha82 said "that by consenting to sex, a person implicitly consents to provide a certain level of parental care to any child that may result."
Yet the law does not truly require that. For example, many states have safe-haven laws that allow a baby to be dropped off at certain safe locations with little or no negative consequences.

If you have sex while on the pill and using a condom, have you really consented to a baby? If I publish on the internet that I didn't get to my bank before it closed and thus have $100,000 in jewelry at home, do I forego the right to shoot the robber that shows up?

Just because the "certain level of parental care" varies from State to State does not invalidate the principle. Even the safe-haven laws can be seen as a form of this. Dropping a newborn off at a fire station or hospital is allowed, but simply abandoning that newborn in a dumpster is not. Thus in such States, ensuring that the baby will be cared for is the minimum level of parental care.

Furthermore, no State absolves parents of all responsibility if they tried to avoid pregnancy. Fathers are still required to pay child support if the couple used contraceptives, and they failed.

By your bizarre comments, I am reminded that the extreme lack of conscience has been demonstrated to be a largely hereditary trait. In America, this trait is more concentrated in the Southern states which suffered heavy genetic loading from England's prisoners who were transported to America in the 1700s. This does suggest that there could be a gene pool benefit to those who feel no empathy for an unborn child choosing against having their own offspring. That said, the unborn child is clearly still an innocent life which is being ended for the convenience of the person/s deciding to take that life.

@JKemp. Your post shows what is wrong with much of the American right wing. You resorted to morality and "conscience" and ignore any of the reasoning I presented. Show me where my logic goes wrong. Anakha82 is doing a good job in that regard, for example. To go back to my first response:
Just because abortion involves killing does not make it wrong.

Why is an unborn baby more "innocent" than a mentally retarded adult or a person involuntarily high on drugs? Why is an embryo not just like a parasite?

The reality is that most of the women I know, including my wife, went through difficult pregnancies. Having witnessed it, I think it is morally repugnant to force someone to go through all that.

Conscience, also known as the presence of empathy, is a neurologically based trait. The extreme lack of this trait is one form of well recognized pathology, which is largely hereditary, meaning, genetic.

Your logic is abysmal and your projecting from your own tiny sample size to all pregnancies shows a lack of comprehension of statistics.

Many people have great difficulty and suffer with compulsory education in America - 12 years of it. Many men have found compulsory military service to be inconvenient, dangerous, and to some deadly.

Your post shows what is wrong with many of America's young people. Not well educated. Not accustomed to rigorous thinking. Lack of knowledge of statistics and mathematics. Lack of intellectual curiosity, and lack of moral fiber. The only thing not lacking is self-centeredness.

Your analogizing to mentally retarded adults, those high on drugs, and parasites, is bizarre in the extreme.

Your seeming view is that neither you or your wife have any duties other than to your own selves. That does not describe a form of humanity which can survive through the ages, but one destined to fail very badly.

Generally,
Of course I made some over-the-top remarks, but I feel they show the massive gray area around abortion. That gray area is why there is no solid basis for drawing a bright protective bubble just for an unborn baby / embryo / fetus.

@JKemp
I didn't say you were part of the right wing. I said your posts, which ignore any attempts at using logic, are characteristic of the failures of the right wing. You accuse me of those failures, yet display them in your responses - lack of intellectual curiosity and rigorous thinking. If my logic was so abysmal, why did you refuse to address the logic? Your last posts wander off into strange lands, and your assumptions about me are highly inaccurate. But if you want to talk empathy, where is your empathy for the desperate women who not want to be pregnant? I won't say more.

This is an example of presenting an analogy to make a point then withdrawing the analogy whenever it fails. You're the one who made the intruder analogy. You can't withdraw it when I point out that the intruder is a baby then reintroduce the analogy when replying to Andros.
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Re your reply to Andros: An intruder assaulting you gives rise to the reasonable belief that you're in imminent danger of death or serious physical injury. If that's the only situation in which you're pro-choice, you're more aligned with pro-lifers.

Dave USA,
Your comments were beyond over-the-top. The term "moral insanity" seems a better descriptor of your comments. Your logic is not logic, simply bold assertion. As for strange lands, it is my impression that some very strange and disturbing lands exist within your mind. Hopefully no one but yourself will ever have to suffer with visiting those strange lands.

RestrainedRadical, I don't understand your statement that I withdrew my intruder analogy. I don't claim a baby post birth in analogous to an intruder, just pregnancy. Finding a baby in your house is no threat, because that baby cannot hurt you. Pregnancy can.

If you describe the symptoms of pregnancy without saying it is pregnancy, it sounds like a physical malady for which you would seek serious medical attention. If a home invader was about to inflict those same symptoms, you would be allowed to resist with lethal force.

Of course it is killing a living being. We kill living beings by the millions for the simple reason that we like to consume their flesh.
A second trimester abortion is the killing of a nonsentient living being, same as killing a steer. Yes, the fetus genetically human, so is a cancer. Both are nonsentient organisms theoretically capable of independent life with proper support.
Should we demand that the lives of tumors be preserved after they are surgically removed, or even forbid cancer treatment until the patient faces the risk of imminent death?
It's not so simple as you would like it to be.

Of course most pregnancies are by consensual sex. Nobody doubts that for an instant. But there are two caveats:
1) for some (and if you have been, or been around, teenages lately you know that this is as true today as it ever was), the urge for sex is sufficient that the possible consequences are not really on the radar. That is, the sex was a choice, but the pregnancy far less so.
2) the explicit question I raised was what proportion of abortions (not pregnancies) are the result of consensual sex? I honestly don't know. Do you?

'Let's be honest' -- what a foolish argument, and in this context dishonestly ignores reality. Your schooling in biology seems to ignore reality, as in 50% of all fertilized human ova are terminated due to 'natural' causes without active intervention. The total number of US abortions (we are not discussing China here, another context altogether) is a fraction of the total and the number of pregnancies terminated after the first trimester is an even smaller fraction.

Ha-ha, my dear AA imagine a bullying right-winger using the (incorrect) quote of a 'liberal lawyer' to shame a bullying (nutcase) right winger, to argue against a misguided argument in this context (I personally can't tell where that misguided argument lies on the political spectrum). You lighten my day with this nonesense. My own observation is that right-wingers have serious personal issues with shame -- but don't know why.
The quote, as I learned it, is 'Have you no sense of decency, sir? At long last, have you left no sense of decency?' And Welch issued it attempting to silence the notorious right-wing nutcase Sen. Joe McCarthy of McCarthyism fame.
Sure, our friend David seems to have stuck his foot in his mouth making a foolish argument, but you are little better. Time for some rethinking and consideration of the reality involved here. Time to stop with the polemics.

Ah yes. The stork brings the baby. It's just like a house guest or a relative that popped in for the evening. No.

Let's say the state knocks on your door and says, we have here a human being that can't survive for the better part of a year unless we chain you to a hospital bed, and harvest your bodily fluids 24/7 to grow it. You have no choice in the matter. Now you and one other person caused this chain of events, resulting in conception, but that other person contributed a microgram of dna, and is demanding you to.. quite literaly carry the entire load. After the nine months you can be freed, but not quite, now you have to feed, again with your body for 6 months to years, clothe and raise the thing which takes all your time. BTW this hospital stay might kill you.

I addressed the famous violinist hypo elsewhere. This has been addressed ad nauseum in college ethics courses. The difference is between killing and allowing to die. If we don't donate, some starving kid in a poverty-stricken country will die. Letting him die isn't the same as going up to him and shooting him in the head. This shows up in the famous trolley hypo too. There's a big moral difference between allowing a train to run someone over and pushing someone onto the tracks. Disconnecting the violinist from yourself, allowing him to die naturally is not the same as puncturing his skull and vacuuming his brains out.

"So, explain for us. . . . what exactly does the baby "do" to its mother that it intends?"
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Having no functional cognition by design during gestation, and because the process is autonomic, the baby ('s body) does the following:
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Grows a placenta into the uterine wall, leaking growth hormones to induce vascular development in the mother's circulatory system into intermix with the child's. The baby's body then produces large quantities of hormones including insulin in order to induce the supply of nutrients it drains off of her in order to sustain its development. Biologically, pregnancy is a form of parasitism, which has lots of reproductive advantages for the life that uses that strategy (over eggs for example)..
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There is some scientific evidence that the duration of relationship between the mother and father, and also the birth order of the child plays some role in the agressiveness the fetus exhibits extracting nutrients from the mother. There is definitely a bit of a competition as the mother's body has to modulate how much the baby can draw from her, lest it kill her. At times the baby's hormonal manipulation can induce problems like diabetes in the mother.
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Apparently earlier birth order fetus' are the most agressive in their attempts to harvest nutrition from its 'host'.

All of which just says we have instincts sway our attitude one way or another, but is otherwise with out rational recourse, because it itself it pre rational.
The rest of the debate revolves, endlessly, whether or at what stage the organism should have consideration as 'person' or not.
Even if one is willing to argue that in the first trimester there is only a potential person, now woman is to give up determination over her body, and lay back and 'enjoy the ride' like a good little girl.
In any case the trolly exercise is a false comparison. It lacks the fundamental reality that men, including you, are so very good at ignoring. That 'pre-person' exists by parasitism upon another. Pregnancy is basically a delicate combat between the fetus' endocrine system and the mother's where the baby is trying to maximize extraction of nutrients from its host, and the mother's body must govern this process so both survive, and she has a chance at passing on her genes.
So, no, you didn't address the hypothetical, because you have yet to demonstrate taking on a relevant one in the first place.

Whether the person is literally connected or unconnected but still reliant for survival is irrelevant to the debate but if that's what's bothering you, I did address it with the violinist hypo. Google it if you aren't familiar with it. It's literally the exact hypo you presented.

You're a guy. You can't comprehend it. Over and over you demonstrate it. Just accept the fact you are not qualified to debate the topic with regard to what pregnancy is. You don't have the plumbing or the neurons for it.

If that is how you see the coming into this world of a human soul ("Baby's hormonal manipulation . . . pregnancy is a form of parasitism" . . . "Aggressiveness of [the] fetus" then anything I could say against abortion is superfluous. With friends like you, the last thing the pro-abortion side has to worry about is its enemies.

Pregnancy is very much driven by the developing child and the child 'controls' this process by producing hormones.
And bluntly, them's the facts regarding how gestation works, from mice, tiger, whales, to humans; if I had described the process but only referred to mice, my guess is you'd not make any comment.
You're the one using terminology applied to the full moral agency to a being that has yet to have the structure in place for any conscious agency at all. During early gestation the developing child has no lungs, no gut, bones, fingers, toes, eyes, ears, tongue or functioning nervous system.
This debate regarding moral status has a long history: http://en.wikipedia.org/wiki/Ensoulment
Each side is as old as humanity. Dire declarations of imminent doom and moral decay are overrated.
People, when raising farm animals they intend to eat in a few months may demonstrate lots of protective feelings for 'their herd', but in the end, we intend to chop them up and eat them. Is that not just as 'sick' an attitude? (i am saying this an avid omnivore). Why not declare the problem as moral decay starting there?
Life is complicated.
PS with regard to gendercide, I suppose your moral outrage does not extend to the reality that the traditional way of culling females (or unwanted/unaffordable children) was to leave them out on a hillside or drown them in a bucket? .. Just as the Romans and Greeks did with children they couldn't deal with.
Mind you, Chinese, Greek and Roman cultures are all examples of the least successful cultures in history, yes? The Chinese are known for their abject disdain for children?
Let's be clear here, the issue is a dire choice for the individual making it, but she is the one bearing all the costs and risks for this venture. Men can decide to check out at any time, pssht, and onto the next target. Now, am I all for couples conceiving with the full desire to nourish and raise their children, but this blanket attempt at legislating moral sentiment is counter productive.

In my humble opinion the legacy is that the left became mainstream and the right became more active and radical. In the short to medium term the right will use its radical stands to force its opinion, but as USA becomes increasingly more urban and diverse, the radical views of the right will be alien to most new Americans. The right needs to make a turn for the mainstream or risk becoming the third party.